Can an Aunt Get Custody Over a Bio Parent in North Carolina?

It’s hard enough for a child to lose a parent, but to have to wonder where they’ll live next adds uncertainty at a time when they most need stability. When a relative has been taking care of the child and the surviving parent wants custody, families may find themselves facing that question while still grieving.

A biological parent has good legal protections, but those protections come with responsibilities. Kent v. Johnson examined whether a maternal aunt could seek custody after the child’s mother died.

Background of Kent v. Johnson

The child, who was born in 2014, is referred to as M.J. to protect his privacy. His parents divorced in 2016 and his mother was awarded sole legal and physical custody in 2018. Between 2017 and October 2020, his father, Willie Johnson, saw him only four times.

After the mother’s death in September 2020, Johnson petitioned the court to revise the existing custody order to permit M.J. to live with him. Tanya Kent, the child’s maternal aunt, also sought custody. M.J. was living with Kent, who said she had maintained a close relationship with him throughout his life.

Kent requested emergency temporary custody partly because Johnson allegedly threatened to take M.J. out of North Carolina to prevent her from seeing him again.

In April 2022, the trial court awarded Kent primary legal and physical custody and allowed Johnson visitation. Johnson appealed, challenging Kent’s right to bring the claim and the earlier emergency custody decision.

Did the Aunt Have Standing to Seek Custody?

Standing is the right to make a particular claim to a court. Johnson argued that Kent lacked standing, in which case the trial court lacked authority to hear her custody claim.

The Court of Appeals disagreed.

In North Carolina, relatives can file custody claims. Kent told the court that she was M.J.’s biological aunt, and that they had more than just an occasional relationship. She claimed to have been consistently involved in his life and to have a bond similar to that of a parent and child.

The complaint also alleged that Johnson had neglected and abandoned M.J. She described very limited contact and a lack of involvement in his care, including no calls or birthday acknowledgment.

The appellate court found these allegations sufficient to establish standing. That allowed Kent’s claim to be heard.

What About the Father’s Parental Rights?

Having standing and being entitled to custody are two totally different questions.

In general, a biological parent has a superior and constitutionally protected right to the care of their child. The opinion explains that “clear, cogent, and convincing evidence” is required to overcome that protection for a nonparent seeking custody.

The court went on to discuss how a parent can lose that superior status by acting in a manner inconsistent with parental responsibilities. Kent alleged that Johnson had not taken on those responsibilities and had no meaningful bond with M.J.

Having a caring relative does not mean that person automatically gets custody over a parent. Courts must consider the parent’s constitutional protections as well as the relationship and conduct described in the case.

What Happened with the Emergency Custody Challenge?

The Court of Appeals did not decide whether the earlier emergency custody order was justified. The permanent order rendered the challenge to the temporary order moot, as there was no longer a question for the court to decide.

The appellate court affirmed the permanent custody award, granting M.J. primary placement with Kent and visitation for Johnson.

What Can Families Learn from This Case?

Kent shows why both a relative’s relationship with a child and a parent’s involvement can matter in a custody dispute.

Note:  This opinion is unpublished and thus is not binding legal authority in North Carolina.

If you are caring for a relative’s child or facing a custody claim from a nonparent, trusting a family lawyer to explain the legal standards can make an overwhelming situation more manageable. Contact Woodruff Family Law Group to discuss your situation and your options for your family. Reach out today.